Citation Nr: 0314339
Decision Date: 07/01/03 Archive Date: 07/10/03
DOCKET NO. 01-02 807 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an effective date earlier than December 5,
1994 for the grant of a total rating for compensation based
on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Giannecchini
INTRODUCTION
The veteran had active service fro September 1957 to
September 1961
In a decision dated in June 1999, the Board of Veterans'
Appeals (Board) granted entitlement to TDIU. The current
appeal arises from a July 1999 rating decision of the
Department of Veterans Affairs (VA) regional office (RO) in
Los Angeles, California that established an effective of
December 2, 1996, for the grant of TDIU. In a January 2000
rating decision the RO determined that the appropriate
effective date was December 5, 1994.
In February 1994, the RO denied entitlement to service
connection for a cervical spine disability. The veteran
submitted a notice of disagreement later that month.
However, he did not respond to a statement of the case issued
in November 1994, or a supplemental statement of the case
issued in August 1995, and the RO closed his appeal.
The veteran testified before the undersigned at a hearing
held at the RO in February 2002.
REMAND
Beginning In June 2002, the Board undertook further
development of this case pursuant to authority granted by 38
C.F.R.§ 19.9(a)(2) (2002). That regulation was invalidated
by the United States Court of Appeals for the Federal
Circuit. Disabled American Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The development has
been completed. However, in view of the Federal Circuit's
opinion, the case must be remanded for the following:
1. The RO should readjudicate the
veteran's claim in light of the evidence
received since its March 2001 statement
of the case.
2. If the benefits sought continue to be
denied the RO should issue a supplemental
statement of the case.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).